[2017] KEHC 486 (KLR)
The court found that the cause of action, namely the receipt of vexatious calls and the resulting nuisance, occurred in Nakuru where the plaintiff resides. Although the defendant conducts business in Malindi and the website listing the phone number is based there, the actionable harm was suffered in Nakuru. Section...
Source-derived case information.
- Citation
- [2017] KEHC 486 (KLR)
- Parties
- Applicant: Tamani Jua Tao Resort Ltd; Respondent: Philip Komone Mwanti
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 29 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application dismissed
- Judges
- SJ Chitembwe, CC Kipkorir
- Legal Topics
- Transfer of Suits, Jurisdiction, Choice of Venue
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tamani Jua Tao Resort Ltd
Applicant
Philip Komone Mwanti
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether Nakuru CMCC No.526 of 2016 should be transferred from the Chief Magistrate’s Court at Nakuru to Malindi Chief Magistrate’s Court.
- 2 Whether the cause of action arose in Malindi or Nakuru for purposes of determining proper venue.
- 3 Whether the applicant would be prejudiced if the suit is heard in Nakuru.
Ratio Decidendi
The court found that the cause of action, namely the receipt of vexatious calls and the resulting nuisance, occurred in Nakuru where the plaintiff resides. Although the defendant conducts business in Malindi and the website listing the phone number is based there, the actionable harm was suffered in Nakuru. Section 14 of the Civil Procedure Act allows the plaintiff to file suit either where the wrong was done or where the defendant resides or carries on business. The court held that it was proper for the suit to have been filed in Nakuru and that requiring the plaintiff to travel to Malindi would be imprudent and prejudicial. Consequently, the application to transfer the suit to Malindi...
Court Disposition
application dismissed
Orders
- The application dated 24th May, 2016 is dismissed.
- Costs shall follow the outcome of the main suit.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
MISC. CIVIL CASE NO. 29 OF 2016
TAMANI JUA TAO RESORT LTD........................APPLICANT
VERSUS
PHILIP KOMONE MWANTI............................RESPONDENT
RULING
The application dated 24. 5.2016 seeks the following orders:-
1. That this Honourable Court be pleased to transfer Nakuru CMCC No.526 of 2016 from the Chief Magistrate’s Court at Nakuru to Malindi Chief Magistrate’s Court to try and/or dispose of the same.
The application is supported by the affidavit of Kelvin Mbura Advocate Sworn on 24th May, 2016 and his supplementary affidavit sworn on 27th/9/2017. The respondent filed a replying affidavit sworn by Kisilah Daniel Gor on 7th June 2016. Parties agreed to determine the application by way of written submissions.
It is indicated in the application that the defendant in the suit carries on business in Malindi and therefore the right place to sue is Malindi. The cause of action is believed to have arisen in Malindi. The applicant will be highly prejudiced if the Suit is heard in Nakuru. This line of reasoning is reiterated in the affidavit of Mr. Mbura as well as in the applicant’s submissions. Counsel for the applicant submit that sections 14 and 15 of the Civil Procedure Act provides for the choice where a suit is to be instituted. That choice should not be used to prejudice the defendant so that it will be hard for the defendant to defend the suit.
On his part, the respondent maintains that sections 14 and 15 of the Civil Procedure Code should be read together. The suit in Nakuru is for enchroachment and use of his private mobile phone number by the applicant. The plaintiff had an option of filing the suit either in Nakuru or Malindi. The cause of action did not occur in Malindi. The nuisance, inconvenience, Insults and humiliating comments suffered by the plaintiff occurred at the plaintiff’s domicile in Nakuru. Therefore the court in Nakuru is best placed to hear the suit. The law allows the suit to be filed in Nakuru.
I have read the submissions of both counsels as well as the authorities relied upon. The Plaint dated 22. 4.2016 indicate that the Plaintiff/Respondent in around June 2013 started receiving vexetious calls from travelling agencies and private individuals seeking services which the plaintiff did not offer. The plaintiff visited safaricom company offices and it was confirmed that he is the sole registered proprietor of mobile phone number 0722******. He later found out that the defendant had listed the mobile phone number as their contact on its website. That is the cause of action.
From the above pleadings, it is clear that the cause of action did not take place in Malindi. The Plaintiff was receiving the calls in Nakuru. Even if the defendant and its website is in Malindi, it is the vexations calls which triggered the filing of the suit.
Section 14 of the Civil Procedure Act states as follows:
Where a suit is for compensation of wrong done to the person or to moveable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries no business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of those courts.
Illustration (a) A residing in Mombasa beats B in Nairobi. B may sue either in Mombasa or Nairobi.
Illustration – (b) A residing in Mombasa publishes at Nairobi statements defamatory of B. B may sue A either in Mombasa or Nairobi.
I do find that the suit seeks damages for enchroachment of privacy and/property. The enchroachment was done in Nakuru where the plaintiff resides. The plaintiff had the option of filing the suit in either Nakuru or Malindi. It is therefore proper for the suit to have been filed in Nakuru. Having been inconvenienced by the alledged vexetious calls, it would be imprudent for the plaintiff to file the suit in Malindi and travel all the way to Malindi to prove his case.
In the end, I do find that the application dated 24th May, 2016 lacks merit and is hereby dismissed. Costs shall follow the outcome of the main suit.
Dated and Signed at Marsabit this …day of September 2017
SAID CHITEMBWE
JUDGE
Dated, Signed and Delivered at Malindi this 5th day of October, 2017
WELDON KORIR
JUDGE